Keeping Michigan Workplaces Safe

November 8th, 2021 | Sterling

Even with the recently announced delay in implementation, the Michigan Supreme Court’s order to redact Dates of Birth (DOBs) when releasing court records is set to go into effect January 1, 2022. During a recent Sterling Live episode, Angela Preston, Senior Vice President and Counsel for Corporate Compliance and Ethics at Sterling, answered questions about the rule and its potential to disrupt hiring. Take a closer look at how it could impact background screening in Michigan and what that means for Michigan employers and job seekers alike.

DOB Redaction Rule Jeopardizes Michigan Businesses

As the post-pandemic recovery continues, many organizations are grappling with the US labor shortage, but for Michigan employers, finding candidates will just be the first hurdle if the order to redact DOBs from court records moves forward. Angela notes, “Keeping Michigan workplaces safe is the overriding goal when conducting background checks for prospective employees.” While background checks may have been considered optional in the past, increasingly companies recognize the importance of screening candidates to reduce the potential for thefts, violence, or reputational damage. Depending on the industry and role, criminal background checks may even be a legal obligation.

Q: What does the Michigan Supreme Court rule entail?

The rule, which was set in 2019 as part of an e-filing initiative, requires clerks to redact personally identifying information on publicly-available court documents. The list of identifiers includes DOBs, as well as social security numbers and driver’s license numbers. In interpreting the rule, however, the Michigan State Court Administrator’s Office (SCAO) extended the rule to restrict use of such identifiers to facilitate digital searches of court records and to prevent court clerks from confirming matches of personal identifiers in court records. In essence, the rule brings background checks to a halt because DOBs are a critical part of confirming that you are, in fact, getting back details on the correct person—especially if the candidate in question has a common name. “The inability to positively associate records with candidates will be a huge step backwards in terms of being able to conduct a background check,” Angela explains.

Q: Who does this rule impact?

The rule has far-reaching implications, so it has caught the attention of trade associations like the Professional Background Screening Association (PBSA) and Consumer Data Industry Association (CDIA). Employers that rely on background screening companies like Sterling will feel the impact, and not just Michigan-owned businesses. The gig economy has increased reliance on public records to screen individuals interested in participating on the platforms. With remote work more commonplace, the rule could also make it harder for candidates in Michigan to connect with potential employers in other locations. Even individual members of the public have reason to be concerned because the rule will make mandatory screening of healthcare workers and others who interact with vulnerable populations more difficult. As Angela asks, “Do you want to entrust the safety of an elderly family member to an assisted living facility or your child to a day-care provider or athletic program if the people interacting with your loved ones can’t be thoroughly screened?”

Q: What was the catalyst for the rule?

The rule arose from increased scrutiny of consumer privacy and cyber security in the digital age. For example, victim’s rights groups view restricting access to personally identifiable information as a way to shield their constituents from potential threats. But in the long run, the unintentional impact of the rule could do just the opposite. By making it more difficult to conduct background checks, the rule raises the likelihood that gaps or inaccuracies in background checks conducted without a DOB will compromise safety.

Q: Why are employers, background screening providers, and trade organizations arguing against the rule in the Michigan legislature?

We need a solution that balances the safety concerns of Michigan employers with the privacy concerns of private citizens. In early October, Michigan State Representative Graham Filler introduced a bill that requires that personally identifying information, including the DOB of a defendant, be included in the court documents. This ensures that background check companies can meet legal obligations, such as the Fair Credit Reporting Act requirement for matching personal identifiers with the person in question before generating a report. At the same time, the bill specifies that personal identifying information for witnesses or victims associated with a criminal court record do not need to be included in the public record.

Q: What does this mean for the future?

Your voice matters. A California Court of Appeal recently upheld a rule restricting use of DOB and driver’s license numbers for identifying individuals in public records. Some local jurisdictions have implemented or are considering similar restrictions. Now, more than ever, concerned parties need to work together to set a precedent that establishes an acceptable compromise—one that respects privacy of individuals without putting the brakes on safe hiring practices.

Q: Where can you go to get involved or learn more information?

Find out more about the rule and its potential impact from the PBSA. You can also sign the PBSA petition supporting modifications to the rule to help ensure background screenings in Michigan are as accurate and complete as possible. (Note: individuals are identified, not company names.)

Watch the entire Sterling Live Q&A for more details. If your organization would like to take an active role alongside Sterling, please contact us.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.